The importance of investing time in developing a discovery strategy
With discovery often being the largest cost of litigation, it is important to invest time in developing a discovery strategy.
The discovery process is still largely the same as it has always been, but the increasing volume of electronic information has complicated the process. Without investing sufficient time at an early stage developing a discovery strategy, the discovery process can be complicated, time consuming and costly.
More work now needs to go in at an earlier stage to enable lawyers to make more informed decisions to enable a more comprehensive understanding of the facts and manage the path of your case.
Challenges with increasing document volumes
In today’s digital world, the exponential increase in the sources and volumes of electronic information makes the discovery process more challenging. In turn, this provides complexities that present new challenges for the legal profession.
The rapid growth of electronic information can potentially add substantial cost and burden to the discovery process – even on the smallest of matters.
It is becoming increasingly difficult to get to the key information quickly and cost effectively, especially if traditional practices are used to address eDiscovery. On most matters it has now become too expensive to “eye ball” every document, which may have been possible in a paper based world.
Court expectations require upfront investment
The High Court discovery rules place greater obligations on lawyers to narrow the scope of discovery and at the same time ensure the cost is proportionate. This requires more “front loading” of work, but this initial work will provide greater value later in the discovery exercise.
Parties must address the Discovery Checklist (in Schedule 9 of the rules) on all matters and then discuss the issues raised with the other parties to agree the scope and practical arrangements for conducting discovery – all in advance of the first Case Management Conference. Parties are now expected to identify:
- who are the key individuals in the dispute;
- what you have and where it is located;
- what is important to the matter in dispute; and
- how this information can be provided in a method that is accurate, efficient, and cost-effective.
In most matters it is difficult to make an informed assessment about proportionality until work is invested to understand the most effective discovery approach.
Planning a discovery strategy at an early stage
Investing time developing a discovery strategy will help in preparation for the first Case Management Conference and provide a strategic advantage in discussions with opposing counsel.
Investing the time at the outset can have considerable cost savings down the track – even on the smallest of matters. Spending an hour or so at the outset can provide considerable value as the matter progresses. The earlier planning will prevent the chance of duplicating work which can lead to considerable and needless expense.
There is not a “one size fits all” approach to discovery. It is important to devise a strategy that suits the requirements of your matter. This discovery strategy may be different to what you may have used on another matter with different requirements.
It is important to understand your specific requirements, together with devising the most effective strategy to identify, collect, review and produce the information.
Identifying and collecting documents from the client
The process of identifying and collecting information from your client now takes on greater importance. In the past this may have simply involved a request to the client to provide all “relevant” information.
Being more informed about your client’s information will assist with working through the Discovery Checklist and agreeing the scope of discovery. Obtaining this information at an early stage will help in devising the right approach to manage the information. If this information is difficult to identify, then the cost of locating and retrieving the information will continue to escalate
An eDiscovery questionnaire or checklist to work through with the client and their IT representatives can be beneficial in finding out about the information held by the organisation. This information can then be explained in plain English back to the legal team to ensure they are informed about the position of the information and help shape the strategy going forward.
The questionnaire will help identify any potential problems. These problems may be important factors in agreeing the scope and reasonableness of the discovery exercise.
Once the information has been identified, the method of collecting that information has to be considered. There can be significant cost implications if not performed effectively, or the risk of having to “reinvent the wheel” and collect again which may be disruptive to your client’s business.
It may be appropriate to consider a third party to manage the collection process and not rely on law firm or client employees. This will be beneficial if the collection process is ever called into question.
Predict and control costs
Predicting and then controlling the costs of the discovery process will be a vital part of the discovery strategy.
Assessing and predicting these costs will be important to substantiate proportionality claims in preparation for the first Case Management Conference.
It is important to understand the potential costs of each stage of the discovery process as well as the tools to assist in discovering the required information. All of this is required to be understood at a much earlier stage than many have been accustomed to.
Due to the complexities associated with managing electronic information there are now greater challenges to accurately predict costs, let alone control discovery costs.
The various approaches and tools used will have different cost implications. The cost models of different providers and software can vary greatly. It is always important to get an idea of the likely costs, but also assess the most appropriate path to proceed along.
Having a better idea of the likely discovery costs involved will help law firms provide their clients more certainty over the potential costs associated with the litigation.
How to search and review documents
Parties are now required to discuss their methods and search approach in advance of the first Case Management Conference.
It will be to your advantage to have considered the strategy that best suits you and your client before discussions with opposing parties. Obtaining an early insight into the data will assist you substantiate your approach to agree the discovery scope and ensure a proportionate and reasonable search.
While the final discovery may only involve a few hundred documents, finding these documents can be complicated and costly. It is important to devise methods to cull down the documents.
Largely due to the ineffectiveness of traditional practices, it is important to come up with new practices that reduce the volume of documents that require lawyers to review.
If keyword search terms are to be used it is important to investigate and test their effectiveness and limitations. It may be that new practices and tools like predictive coding and technology assisted review are options where technology can be applied to assist lawyers get to the key documents much earlier in the process.
It is important to understand the approach and tools that will be best suited to your case’s requirements, and do so at an early stage as part of your discovery strategy. An effective search and review approach will assist you to get to the key documents quickly and cost effectively.
Complying with and modifying the exchange format
Part of the discovery strategy will involve ensuring your approach is able to comply with the requirements of the listing and exchange protocol.
It will be beneficial to devise the most effective method to exchange and receive documents from the other parties. This approach may involve modifying the default listing and exchange protocol. It is becoming more common for parties to no longer manually list documents, and just use the extracted metadata to populate the discovery list.
It may be in your interest to request the documents to be provided in their native file format. Providing documents in their native file format (instead of expensive scanned paper) will allow greater means to interrogate the evidence if you have the software to do so. Too often not enough thought goes into what to do with the documents from other parties.
Discovery can be challenging, but investing more time at an early stage devising the most appropriate discovery strategy will help ensure a more proportionate and cost effective discovery process.
The upfront investment will enable more informed decisions which will pay greater value later in the discovery exercise that can help reduce the cost and burden of the litigation or investigation.
Independent advice may help add considerable value to assist you prepare your discovery strategy, and simplify your discovery process.
Andrew King is the founder and strategic advisor at E-Discovery Consulting (www.e-discovery.co.nz), where he manages the entire discovery process or provides independent advice on any aspect of it. Andrew can be contacted on 027 247 2011 or firstname.lastname@example.org.
Last updated on the 17th March 2016